United States v. Cleveland Hankerson ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 19, 2007
No. 06-13228 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 91-00010-CR-002-WDO-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEVELAND HANKERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(March 19, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Cleveland Hankerson appeals, pro se, the district court’s denial of his motion
for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Because
Hankerson was not sentenced based on a sentencing range that was subsequently
lowered, § 3582(c)(2) does not apply, and we AFFIRM.
Hankerson filed a motion in the district court seeking to modify his sentence
under 18 U.S.C. § 3582(c)(2), which provides that “in the case of a defendant who
has been sentenced . . . based on a sentencing range that has subsequently been
lowered by the Sentencing Commission,” the court may, upon motion of the
defendant, reduce the term of imprisonment. Hankerson argued that Amendment
591 to the United States Sentencing Guidelines, which was enacted after his
sentencing, lowered the guideline range under which he was sentenced. Therefore,
Hankerson argued, § 3582(c)(2) applies and he is eligible for a reduction of his
sentence. After considering Hankerson’s motion, a magistrate judge recommended
denying it on the ground that Hankerson was sentenced under U.S.S.G. § 4B1.1,
the career offender provision, which was not affected by Amendment 591. The
district court adopted the magistrate judge’s report and recommendation over
Hankerson’s objection, denying the motion. Hankerson appeals.
A district court’s decision whether to reduce a sentence pursuant to
§ 3582(c)(2) is reviewed for abuse of discretion. United States v. Moreno, 421
F.3d 1217, 1219 (11th Cir. 2005) (per curiam) (citation omitted). Section
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3582(c)(2) “does not grant to the court jurisdiction to consider extraneous
resentencing issues.” United States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000).
Rather, § 3582(c)(2) only permits the district court to modify a sentence if the
defendant’s sentencing range was subsequently lowered by an amendment to the
guidelines.
Amendment 591, upon which Hankerson based his motion, affected the way
a district court determines the applicable offense guideline in cases where the
defendant is sentenced under Chapter Two of the sentencing guidelines. See
U.S.S.G. Amend. 591; Moreno, 421 F.3d at 1219-20. Though Hankerson was
convicted of an offense that otherwise qualified for sentencing under Chapter Two
of the guidelines, he was ultimately sentenced under Chapter Four of the
guidelines, specifically, § 4B1.1. Amendment 591 did not affect the application of
§ 4B1.1, and therefore did not lower the sentencing range under which Hankerson
was sentenced. See U.S.S.G. Amend. 591. Indeed, had Hankerson been sentenced
after the enactment of Amendment 591, his guideline range would have been the
same. Thus, Hankerson was not “sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission,” and § 3582(c)(2) does not apply. We find that the district court did
not abuse its discretion in denying Hankerson’s motion for a reduction of sentence
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under § 3582(c)(2).
Because Hankerson was sentenced as a career offender under U.S.S.G.
§ 4B1.1, Amendment 591 did not affect the guideline range under which he was
sentenced, and 18 U.S.C. § 3582(c)(2) does not apply. Therefore, district court
properly denied the motion, and we AFFIRM.
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